GENERAL INTRODUCTION

0.1. Background of Study

Getting involved in the affairs of another state on humanitarian ground has been a subject of discussion in public international law since the 19th century[1]. Possibly, the first historical example of a State expressly intervening in the internal affairs of another on the grounds of humanitarian concern was during the Greek War of independence in the early 19th century, when Britain, France and Russia decisively intervened in a naval engagement at Navarino in 1827 to secure for the Greek independence from the Ottoman Empire[2].

Humanitarian intervention can be understood as actions undertaken by an organization or organizations, usually a State or a coalition of states such as the North Atlantic Treaty Organization (NATO) which was been deployed during the crisis in Libya, United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) and Non-governmental Organizations such as the United Nations High commissioner for refugees (UNHCR), the International Committee of the Red cross (ICRC), Doctors without borders, World Food programme (WFP), that are intended to alleviate extensive human suffering within the borders of a sovereign State.

Such suffering tends to be the result of a government instigating, facilitating, or ignoring the abuse of groups falling within its jurisdiction.[3] This abuse often takes the form of deliberate and systematic violations of human rights, including forced expulsions, ethnic cleansing, and, in the most extreme cases, genocide[4]. A humanitarian agenda can also be established in situations where there is no effective government and civil order consequently has collapsed.

Humanitarian intervention constitutes a calculated and uninvited breach of sovereignty, that is the rights belonging to the various States, especially with reference to the strict interpretation of their respective Constitution, in the name of humanity to protect the liberties of each individual to pursue life and goals without interference from other individuals or the government[5]. Though humanitarian interventions do not necessarily require the employment of military force as they could include, for example, the imposition of sanctions which refers normally to situations in which force or the threat of force is used against a state which has been persistently violating the rights of its citizens and has been called in many instances by the international community to remedy the situation, but persist in violating the rights of its citizens, sanctions may therefore be imposed on such a state in order to push such a state to comply and regain order, these sanctions can be economic, or political.

Humanitarian interventions have been common up till present date because of the various difficult situations which humans face in their respective countries usually characterised by wars, internal armed conflicts, natural disasters and political instabilities. Humanitarian intervention has been the source of incessant argument by lawyers, theologians, and philosophers for generations. But the recent debate has its origins in the Cold War and was motivated by a number of controversial military actions. Three in particular stand out: India’s intervention in the Bangladesh War of 1971,Vietnam’s intervention in Cambodia in 1978, which resulted in the overthrow of the genocidal Khmer Rouge regime and Tanzania’s intervention in Uganda in 1979, which ousted the dictator Idi Amin[6]. These interventions were all condemned throughout the world. This criticism tended to be based on the contention that they undermined the notion of State sovereignty enshrined in Article 51 of the United Nations (UN) Charter. As such, these interventions offered a fundamental challenge to the stability of the post-World War II international system.[7]

Current trends in forced displacement are testing the international system like never before. Some 33.9 million people were ‘people of concern’ which refers to IDP’s because the refugee convention of 1951 does define and provides for IDP’s to the United Nation High Commission for Refugees (UNHCR) at the start of 2011, an increase from 19.2 million in 2005.[8] Many were not refugees, as the proportion of refugees among the people of concern to UNHCR decreased from 48 per cent to 29 per cent over the past six years[9]. As of the end of 2019, 50.8 million people were living in internally displacement because of conflicts, violence and disasters[10]. These figures show that, internal displacement is a crisis of enormous proportion and yet, the world is largely unaware. The UNHCR has increasingly engaged with internally displaced people (IDPs), stateless people, populations affected by major natural disasters and people displaced in urban areas. UNHCR has responded to new emergencies in many countries such as Cameroon, Libya and Côte d’Ivoire, while addressing long-standing displacement in and from countries such as Afghanistan, the Democratic Republic of the Congo, Iraq, Somalia and Sudan. Recognizing the diversity of displaced populations and their needs, UNHCR has taken steps to ensure that its programs are tailored to meet different needs, and UNHCR’s Age, Gender and Diversity policy sets out its commitment to ensuring equitable outcomes[11].

Global social and economic trends indicate that displacement will continue to grow in the next decade, taking on new and different forms.[12] Displacement patterns will be affected by population growth, from today’s 7 billion people to 10.1 billion by 2100, and mostly in Africa and Asia, by urbanization, including the increased rural to- urban migration of young people leaving rural poverty and food insecurity, and adding pressures on housing and employment in cities, by climate change and natural disasters, which already displace millions of people every year, by increased food prices linked to urbanization and reduced agricultural output in Africa and Asia and by increasing conflict over scarce resources which could depopulate some areas[13].

Developments in the international system have also affected the international response to refugees and internally displaced people. Humanitarian reforms initiated by the United Nations in 2005 have made international humanitarian action more efficient, accountable and predictable[14]. The African Union (AU) Convention for the Protection and Assistance of the Internally Displaced persons in Africa (Kampala Convention) remains the world’s only legally binding regional instrument on internal displacement. Over the last ten years, 30 members of the AU have ratified the Kampala Convention such as Angola 14 May 2013, Benin 28 February 2012, Burkina Faso 5 July 2012, Cameroon 6 April 2015, Central African Republic 20 December 2011, Chad 11 July 2011 and Democratic Republic of the Congo 2 February 2010. Many countries such as Egypt, Tunisia, Libya, South Africa, Ghana, Senegal, Algeria, Namibia, have adopted domestic legislations or policies to implement its provisions or are currently undergoing this process[15]. Several States have taken concrete initiatives that have improved the lives of IDP’s in their communities such as Cameroon, Central African Republic, Chad, by providing basic goods necessities to IDP’s and by acting together with NGOs to ameliorate the situation of IDP’s. The UN Security Council’s endorsement of the Responsibility to Protect doctrine, and a new emphasis on the protection of civilians in peacekeeping operations, have contributed to protecting basic human rights in situations of armed conflict. The International Criminal Court, and mechanisms at national and regional levels, have contributed to reinforcing accountability for armed actors. The need to ensure the protection of IDPs is now widely accepted, and a broad definition of protection has been affirmed by the UN-led Inter-Agency Standing Committee (IASC). Further, UNHCR and other humanitarian actors have increasingly recognized that their principal accountability is to the people they serve.

0.2.Definition of Key Terms

Humanitarian intervention: These are actions undertaken by an organization or organizations usually a state or a coalition of states that are intended to alleviate extensive human suffering within the borders of a sovereign state. Such suffering tends to be the result of a government instigating, facilitating, or ignoring the abuse of groups falling within its jurisdiction.[16] Adam Roberts defines humanitarian intervention as a “military intervention in a state, without the approval of its authorities, and with the purpose of preventing widespread suffering or death among the inhabitants”.[17] For Tonny Brems Knudsen, humanitarian intervention is “dictatorial or coercive interference in the sphere of jurisdiction of a sovereign state motivated or legitimated by humanitarian concerns”.[18] According to Martha Finnemore, humanitarian intervention is a “military intervention with the goal of protecting the lives and welfare of foreign civilians”.[19] In the words of Bhikhu Parekh, humanitarian intervention is “an act of intervention in the internal affairs of another country with a view to ending the physical suffering caused by the disintegrations or gross misuse of authority of the state, and helping create conditions in which a viable structure of civil authority can emerge”.[20] In a proper legal sense, according to Wil D. Verwey, it is understood “as referring only to coercive action taken by states, at their initiative, and involving the use of armed force, for the purpose of preventing or putting a halt to serious and wide-scale violations[21]

However, within the context of this work humanitarian intervention will be understood to mean, the actions undertaken by external actors such as non-governmental organizations or coalitions of states in order to intervene in a particular country where it has been founded that there is an alarming rate of internal displacements which is beyond the ability of such a State to contain but still refuses humanitarian assistance and situations where a State is requesting humanitarian assistance for internally displaced persons within its borders .

State Sovereignty: It refers to the possession of sovereign power, supreme political authority, paramount control of the constitution and frames of government and its administration, the self-sufficient source of political power, from which all specific political powers are derived, the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation[22]. Within the context of this work state sovereignty will mean the inviolable protection each state has towards the other states and non-governmental organizations when it’s been faced with crisis or critical situations like wars which pushes people to displace themselves from their original area of habitation to new ones for their safety. Therefore, such situations often attract non-governmental organizations or coalition of states who come in order to assist the government and the people in need of help and sometimes such interventions by non-governmental organizations or coalition of states are been done without the concern of the state of the state in question thereby breaching the sovereignty of such States.

Internally Displaced Persons (IDP’s): It refers to individual or group of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result or in order to avoid the effects of armed conflicts, situations of generalized violence, violation of Human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border but remain within the borders.[23] Within the context of this work, it is important to note that internally displaced persons are different from refugees because refugees are people wo have crossed international borders to seek refuge in other States while internally displaced persons have not crossed their national borders, they remain within their state. Therefore, we are referring to all those who are pushed to displace themselves from one area to another in search of peace and safety but who have not crossed their national borders.

Interface: It refers to a place where two systems or subjects that is where they interact. If accepted as such, the “interface” within the context of this work will be understood as the interaction of humanitarian assistance and State sovereignty.

Traditionally under the Westphalia Peace treaty, the concept of state sovereignty was considered in absolute terms. Left as such, it would have been unheard that humanitarian aid could be provided to IDPs since the sovereignty of the state could not be infringed upon. Following the changing nature of the concept of state sovereignty as was perceived during the Westphalia Peace treaty, in the 1990s where the individual was seen to be at the centre of all state action, conditioning sovereignty to protection of citizens. The current perspective in today’s world affairs establishes a form of rapprochement between state sovereignty and humanitarian provisions. They today seem to share a common ground because both interact now around the state and the citizen.

The concept of interface is actually referring to the notion of interaction between humanitarian provisions and State sovereignty, it will be questioning if they are conflicting or complementary in nature. If it is established that they are conflicting, how can they be managed when human rights of the IDPs are at stake? if they are complementary to what ectent can that complementarity go? Within the context of this work, interface should be understood as point of interaction between humanitarian provisions and state sovereignty.

[1] Jyoti Rattan, ‘Changing Dimensions of Intervention Under International Law’: A Critical Analysis’, (journals.sagepub.com, April 26, 2019), available at https://journals.sagepub.com/doi/10.1177/2158244019840911, accessed  26 December 2020 

[2] Alexi Heraclides and  Ada Dialla, Humanitarian Intervention in the Long Nineteenth Century: Setting the Precedent (Manchester University Press, 2015), p. ix

[3] Mark Bevir,’ Encyclopedia of  Governance’ (books.google.cm, 2007) available at https://books.google.cm/books?id=SKQ5DQAAQBAJ&pg=PT460&lpg=PT460&dq, accessed on 26 December, p.422

[4] Derek Beach and  Rasmus Brun Pedersen, Analysing Foreign Policy (Red Globe Press, second  edition, 2020), p. 221

[5] Pat Nanzer, Individual Rights and Community Responsibility, (learningtogive.org, 2003), available at https://www.learningtogive.org/resources/individual-rights-and-community-responsibilities, accessed on 26 December 2020

[6] Mark Bevir,’ Encyclopedia of  Governance’ (books.google.cm, 2007) available at https://books.google.cm/books?id=SKQ5DQAAQBAJ&pg=PT460&lpg=PT460&dq, accessed on 26 December

[7] Ibid             

[8]UN High Commissioner for Refugees (UNHCR), ‘The State of  the World’s Refugees: In Search of Solidarity’, (refworld.org, 2012),  available at: https://www.refworld.org/docid/5100fec32.html, accessed on 8 April 2021.

[9] International Committee of  the Red Cross (ICRC), ‘The Kampala Convention: key Recommendations 10 years on’, (2019), p.5.

[10] Ibid

[11] UN High Commissioner for Refugees, ‘The State of the World’s Refugee: In Search of Solidarity’ (refworld.org, 2012)  available at: https://www.refworld.org/docid/5100fec32.html, accessed 8 April 2021.

[12] Ibid

[13] Ibid

[14] International Committee Of  the Red Cross (ICRC), The Kampala Convention: key Recommendations 10 years on, (2019), p.13.

[15] International Committee Of  the Red Cross (ICRC), The Kampala Convention: key Recommendations 10 years on, (2019), p.10

[16] Mark Bevir,  Encyclopedia of  Governance, (books.google.cm, 2007)  available at <https://books.google.cm/books?id=SKQ5DQAAQBAJ&pg=PT460&lpg=PT460&dq> accessed 26 March  2021

[17] Adam Roberts, Humanitarian War: Military Intervention and Human Rights, (Oxford University Press, Vol. 69, No. 3, 1993), p. 426.

[18] Tonny Brems Knudsen, ‘Humanitarian Intervention Revisited: Post-Cold War Responses to

Classical Problems’ (doi.org, 2007)  available at <https://doi.org/10.1080/13533319608413644> accessed on 26 March 2021

[19] Martha Finnemore, Constructing Norms of Humanitarian Intervention, in Peter Z. Katzenstein (ed.), The Culture of National Security: Norms and Identities in World Politics, New York, (Colombia University Press, 1996), p. 154.

[20]Bhikhu Parekh, Rethinking Humanitarian Intervention, in Jan Nederveen Pieterse (ed.), World Orders in the Making, (London, Macmillan Press Ltd, 1998), p. 147.

[21] Wil D. Verwey, Humanitarian Intervention in the 1990s and Beyond: An International Law Perspective, in Jan Nederveen Pieterse (ed.), World Orders in the Making, (London, Macmillan Press Ltd, 1998), p. 180.

[22] Henry Campbell Black, ‘Black’s Law Dictionary’ (thelawdictionary.org, 2^nd edition 1995)  available at <https://thelawdictionary.org/sovereignty/> , accessed  1 may  2021

[23] Kampala Convention art 1(k), (2009)